"I'm not a big fan of the light touch; I don't want overregulation, for sure, but... 6, 8, 10 years of willful blindness by referees is no way to deal with the free marketplace," he thundered.

The context for the debate was the DC Court of Appeals, which recently handed Comcast a victory over the FCC and said that the agency had no authority to deal with network management issues under the current classification of Internet services. That ruling dealt a blow to FCC attempts to craft an official "non-discrimination principle" that would make neutrality official.

Dorgan at the hearing

"I want you to respond to [the ruling] aggressively!" said Dorgan. He quoted AT&T's former boss Ed Whitacre, citing Whitacre's infamous "ain't gonna use my pipes for free" comment. If AT&T had gone down the road of charging companies different rates for access, "Sergey and Larry in a dorm room someplace" might not have had access to customers in Minot, North Dakota, said Dorgan.

Congress could simply give the FCC more authority, but it's unlikely to act this year, so Dorgan told Genachowski to just go ahead and move Internet access back under "Title 2" of the Communications Act—making it a common carrier and putting it under tighter regulation. Since the FCC "unraveled [Title 2 jurisdiction] in the first place," it certainly has the authority to change its mind.

"I hope that you will not shy away from taking the tough positions here," he concluded.

You wanna make the rules, you run for office

In the red corner: Sen Mike Johanns (R-NE), who had a... slightly different take on the legal issues involved, and who launched into a serious lecture of Genachowski about who makes the rules.

"You've been handed your hat in your hand in the Comcast case," said Johanns, who also argued that past agency decisions couldn't be reversed. "You can't go to Title 2, it'd be like remaking the world."

The FCC can only do what it's been told to do, and Johanns clearly thinks that more deference to Congress is needed. If Genachowski wants to make policy, he needs to round up some signatures and a filing fee, then get out there and kiss babies and walk in parades. In other words, he needs to run for office as a legislator.

You need to "start at this end of the table," he told Genachowski. "Congress has not given you the power you're attempting to assert... I don't believe you have the power."

Johanns was echoed by Sen. Kay Hutchison (R-TX). In her view, the court's ruling showed that the "Commission does not have the authority from Congress... and that it overstepped its bounds."

Not my idea

Throughout the advice, lecturing, and criticism—Sen. Rockefeller called one of Genachowski's responses "impressive, almost elegiac" and filled with "visions of light," but said that he didn't see "how it helps my people in West Virginia"—Genachowski sat at his table and listened with a slight smile and general willingness to be agreeable to all.

It didn't hurt that he could fob many of the questions about the Comcast debacle on previous (and Republican) commissions; "there were some process issues with that [Comcast] decision," was his delicate phrasing. Now, he's intent on fixing those issues and putting FCC regulations on a firm legal foundation.

Similarly, when he faced criticism for wanting net neutrality, he could also point to previous Republican commissions, noting that they had approved the "four Internet freedoms" at the heart of the Comcast case.

As for what he's going to do next, Genachowski smiled and said nothing, despite using plenty of words. Reviews are underway at the FCC, and it's clear that Title 2 regulation is being considered, but nothing has been decided and Genachowski refused to preview his preferred solution.

And he returned repeatedly to a core idea: despite the Comcast case, the FCC still has the authority to do most of the heavy lifting on the National Broadband Plan.

"Whatever flaws may have existed in the specific actions and reasoning before the court in that case," he said, "I believe that the Communications Act—as amended in 1996—enables the Commission to, for example, reform universal service to connect everyone to broadband communications, including in rural areas and Native American communities; help connect schools and rural health clinics to broadband; take steps to ensure that we lead the world in mobile; promote competition; support robust use of broadband by small businesses to drive productivity, growth, job creation and ongoing innovation; protect and empower all consumers of broadband communications, including thorough transparency and disclosure to help make the market work; safeguard consumer privacy; work to increase broadband adoption in all communities and ensure fair access for people with disabilities; help protect broadband communications networks against cyber attack and other disasters; and ensure that all broadband users can reach 911 in an emergency."